United States District Court, D. Nevada
ORDER (1) GRANTING IN PART SFR'S MOTION FOR
SUMMARY JUDGMENT AND (2) GRANTING BANK OF AMERICA'S
MOTION FOR SUMMARY JUDGMENT [ECF NOS. 70, 71]
P. GORDON UNITED STATES DISTRICT JUDGE.
Bank of America, N.A. sues to determine whether its deed of
trust encumbering property located at 10828 Mystic Shore
Avenue in Las Vegas, Nevada was extinguished by a nonjudicial
foreclosure sale conducted by a homeowners association (HOA).
Defendant SFR Investments Pool 1, LLC (SFR) purchased the
property at the foreclosure sale. Bank of America seeks a
declaration that its deed of trust still encumbers the
property. SFR counterclaims for declaratory relief that it
purchased the property free and clear of the deed of
trust. SFR also filed a declaratory relief
cross-claim against the former homeowner, Ryan Torrisi.
America and SFR move for summary judgment on a variety of
grounds. The parties are familiar with the facts so I do not
repeat them here except where necessary. I grant Bank of
America's motion and deny SFR's motion as to Bank of
America because no genuine dispute remains that Bank of
America tendered the superpriority amount, thereby
extinguishing the superpriority lien and rendering the sale
void as to the deed of trust. I grant SFR's motion as to
its cross-claim against Torrisi because the HOA foreclosure
sale extinguished Torrisi's interest in the property.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
moved for judgment as to Bank of America and Torrisi. ECF No.
71 at 1. Torrisi previously defaulted in this case. ECF No.
47. He did not respond to SFR's motion. He therefore has
not pointed to evidence that would (1) counter SFR's
evidence and the presumption that the HOA sale was properly
conducted, (2) overcome the presumption in favor of SFR as
titleholder of record, or (3) otherwise support setting aside
the sale as to him. See Nationstar Mortg., LLC
v. Saticoy Bay LLC Series 2227 Shadow Canyon, 405 P.3d
641, 646 (Nev. 2017). Consequently, I grant SFR's motion
as to Torrisi.
Bank of America
Nevada law, a “first deed of trust holder's
unconditional tender of the superpriority amount due results
in the buyer at foreclosure taking the property subject to
the deed of trust.” Bank of Am., N.A. v. SFR
Investments Pool 1, LLC, 427 P.3d 113, 116 (Nev. 2018)
(en banc). To be valid, tender must be for “payment in
full” and must either be “unconditional, or with
conditions on which the tendering party has a right to
insist.” Id. at 118.
America has met its burden of establishing that it tendered
the superpriority amount in full. The monthly HOA assessment
was $50 per month. ECF Nos. 70-22; 70-23. Prior to the HOA
foreclosure sale, Bank of America tendered $450 to the
HOA's foreclosure agent, Nevada Association Services,
Inc. (NAS), to cover the superpriority amount of nine months
of assessments. ECF No. 70-7 at 15-17. NAS refused to accept
the check, consistent with NAS's policy at the time to
not accept tenders of nine months of assessments.
Id. at 19; ECF No. 70-24 at 5-6. SFR has presented
no contrary evidence in response. Consequently, no genuine
dispute remains that the superpriority lien was extinguished
and the property remains subject to the deed of trust.
Bank of Am., N.A., 427 P.3d at 121.
raises several arguments as to why tender did not extinguish
the superpriority lien. None raises a genuine dispute
precluding summary judgment.
objects to a ledger with the Bates stamp BANA000047, which is
the ledger for another property located in the same HOA that
Bank of America used to calculate its tender for this
property. SFR contends this ledger has not been
authenticated. Next, SFR contends Bank of America cannot show
tender was delivered to NAS because it cannot rely on the
affidavit of Adam Kendis, a paralegal with the law firm Miles
Bauer Bergstrom & Winters, LLP (Miles Bauer). SFR argues
that Kendis lacks knowledge to authenticate the runner's
slip attached to his affidavit and there is inadmissible
hearsay within that document. It also argues that Bank of
America cannot rely on a screenshot from Miles Bauer's
computer database because it contains hearsay. SFR also